IMPORTANT POINT
When recovery is made in a public place, section 42 of the Act is not attracted.

JUDGMENT :

Abhay Manohar Sapre, J.

(1) This appeal is filed against the final judgment and order dated 18.11.2011 of the High Court of Uttarakhand at Nainital in Criminal Jail Appeal No. 4 of 2010 whereby the High Court dismissed the appeal filed by the appellant herein upholding the order dated 15.01.2010/19.01.2010 passed by the Special Judge(N.D.P.S.Act)/Additional Sessions Judge/IVth Fast Track Court, Dehradun in Special Sessions Trial Case No. 30 of 2006 convicting the appellant under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced him to undergo rigorous imprisonment for a period of ten years and a fine of Rs. 1 lakh, in default of payment of fine, to undergo further simple imprisonment of two years.

(2) Brief facts:

On 28.05.2006, on receiving information that a person is coming with contraband item from Tyuni to Kalsi, a team of Special Task Force consisting of Sub-Inspector Ved Prakash Thapliyal (PW-1), Sub Inspector Davender Singh (PW-2), Head Constable Bhawan Singh with Constables, Nagesh Pal, Vijender Singh, Mahender Singh and Harshvardhan along with Driver Dhanveer Patwal proceeded in a vehicle bearing No. UA07-L 1777. When they reached near Chakbhool, they saw the appellant coming with white plastic bag suspecting that he is carrying contraband intercepted him. On receiving the information from the police party, Dinesh Chander Rawat, Deputy Superintendant of Police(PW-5), a Gazetted officer, also reached at the spot. After search being made, it was found that the appellant was carrying 9.300 kgs. of Cannabis(Charas). After taking 100 gm. out of that, the contraband item was sealed in different pack and remaining more than 9 kg. was sealed separately. FIR was registered against the appellant at the Police Station, Kalsi on 28.05.2006 at 9 p.m. as Crime No. 22 of 2006 for the offence punishable under Section 8/20 of the NDPS Act. PW-6 investigated the crime and after completion of investigation, submitted the charge sheet against the appellant.

(3) After examination from forensic laboratory, the item was found as contraband item Cannabis (Charas). The Special Court (N.D.P.S.Act), after hearing the parties on 05.10.2006, framed charge of offence punishable under Section 8/20 of N.D.P.S. Act.

(4) Prosecution examined the witnesses. However, no evidence in defence was adduced.

(5) The Trial Court, after hearing the parties, by judgment/order dated 15.01.2010/19.01.2010 in Special Sessions Trial No. 30 of 2006, found the appellant guilty of charge of offence punishable under Section 8/20 of N.D.P.S. Act and sentenced him to undergo imprisonment for a period of 10 years and a fine of Rs. One lakh.

(6) Aggrieved by the said judgment of the Trial Court, the appellant through Superintendent of District Jail, Dehradun, filed an appeal from jail being Criminal Jail Appeal No. 04 of 2010 before the High Court.

(7) The High Court, by impugned judgment dated 18.11.2011, dismissed the appeal and affirmed the judgment/order passed by the Trial Court.

(8) Aggrieved by the said judgment, the appellant has filed this appeal by way of special leave before this Court.

(9) Heard Mr. Rajeev Maheshwaranand, learned counsel appearing as Amicus Curiae for the appellant and Mr. Dinesh Kumar Garg, learned counsel for the respondent.

(10) Mr. Rajeev Maheshwaranand, learned counsel for the appellant (accused) while assailing the legality and correctness of the impugned order argued only one point. According to him, while making the search from the appellant with a view to find out as to whether the appellant was carrying any contraband, the prosecution failed to ensure compliance of the mandatory requirements of Section 42 read with Section 50 of the NDPS Act. It was his submission that no compliance much less compliance in letter and spirit of the requirement of these Sections was made as explained by this Court in several cases while effecting search from the appellant and th